Tuesday, March 30, 2010

Law Updates for March 26, 2010

Farinacci, 35 FLW 608, 4th DCA, Hearsay: Where def was charged with Lewd and Lascivious fondling the clothed buttocks of a child under 12, it was harmful error to permit the detective to testify and demonstrate the victim's description of them manner in which the def touched him.

M.D., 35 FLW 610, 4th DCA, Constructive possession: Evidence was insufficient to establish that juvenile had dominion and control of marijuana found near him at the time of the arrest. Juvenile's statement that he was in the utility room "to smoke" was not enough to prove juv constructively possessed marijuana. Juv theory was he was smoking tobacco, not marijuana. This was reasonable, and circumstantial evidence was not inconsistent with a reasonable hypotheses of innocence.

Good, 35 FLW 611. 4th DCA, Court can withhold adjudication for two pending felonies pled at the same time. Two concurrent felony pleas, even though one incident was before the other, is not considered a prior case.

Mead, 35 FLW 617, 4th DCA, Intercepted communications: Law enforcement officer's direction to the victim to record any future conversations with the suspect was sufficient even if the ofc is not present. Brings it under the exception of 934.03(2)(c). Language of statute does not require active police involvement or presence during the recording session.

Hernandez, 35 FLW 618, 4th DCA, It was error to permit state to call the def's wife to the stand as a witness for the purpose of impeaching her with the transcript of a taped phone which was inadmissible hearsay. Tape was not admissible as a past recollection recorded where witness was unable or unwilling to attest to the accuracy of the tape recorded conversation.

D.B.P. 35 FLW 629, 5th DCA, search and seizure/ stop and frisk: Juvenile's act of putting his hands in his pocket during a stop for a non-criminal infraction in a high crime area was not sufficient to provide reasonable suspicion to justify the pat down.

The Law Offices of Roger P. Foley, P.A.

Wednesday, March 24, 2010

Law Updates for March 19, 2010

Day, Jr., 35 FLW 563, 4th DCA, 3-19-10, Confession case - Totality of the circumstances, where interviewer made promises of leniency, casual nexus between the def's statements to prove that the statement was product of coercive police conduct. Many offers of help and implying authority to influence the process. Improper "fruits of hope": unrealistic hope that the investigator interviewing him would truly help the defendant. Confession thrown out. amazing facts

Bleiweis, 35 FLW 586, 4th DCA, error to deny bail without permitting argument of counsel on issue of whether the proof is evident and the presumption is great. Writ of habeus corpus granted and assigned to a different judge.

The Law Offices of Roger P. Foley, P.A.

Wednesday, March 10, 2010

Law Updates for March 5, 2010

F.E.H., Jr., 35 FLW 451, 4th DCA, unlawful stop - juvenile detained - reasonable person not feel free to leave. After the juvenile walked away from the ofc's presence the detective called him back and the juvenile returned because he was a policeman, "I had to come back." Juvenile's response was more of a surrender to authority than act of free will. Convergence of other police officers conducting a sweep involving others plus ofcs command was an investigate stop-no reasonable suspicion here juvenile was standing in an open parking lot on a street corner and people often cut the corner and walked through this unenclosed lot. No evidence a sign was posted and juvenile had already left the lot when he was stopped.

DeLa Osa, 35 FLW 455, State's writ of cert. denied where the state tried to disqualify his defense attorney, a former statewide prosecutor, who was formerly in charge of the unit where the charges had been filed four years after her departure from that office.

Benemerito, 35 FLW 456, 4th DCA, no reasonable suspicion when ofc, who had been patrolling a parking lot due to numerous complaints of drug transactions at the store, could not stop the def's car where the def's vehicle was parked at the entrance to the store. A truck entering the parking lot parked a few spaces away from the def's vehicle, truck driver walked to the def's vehicle and entered the backseat, and the truck driver leaned forward and extended his hand before exiting the vehicle and driving off in the truck. The ofc did not see drugs or money, or see a hand to hand transaction.

The Law Offices of Roger P. Foley, P.A.

Monday, March 1, 2010

Law Updates for February 19, 2010

Loncar, 35 FLW 324, 2nd DCA, Modification of probation without a violation is improper and enhancing the def's probation condition is improper. Requirement that the Def could not live within 10 miles of the victim prevented him from living with his father as he had earlier, more restrictive than prior condition. Remand to reinstate the prior probation order.

Green, 35 FLW 325, 2nd DCA, Improper comment on right to remain silent. Case-elicit from the
police that the def declined to give a statement unlike his co-def's. Argued in closing, harmful error, def did not open the door to these statements by narrowly tailored questions to the police in order to try and show they set up the co-def's against each other.

Barrow, 35 FLW 328, 4th DCA, Judge implied to jury who requested transcripts of witnesses 10 minutes after deliberations started without advising them of the possibility of read backs, ignoring the request of the state and defense, certified conflict with 3rd DCA, Hazuri, 34 FLW 2590, 12-16-09.

Douglas, 35 FLW 354, 3rd DCA, Double jeopardy. No manifest necessity with the court declaring a mistrial, def no waiver and not discuss alternatives enough where there def not brought to court on the 2nd day of jury trial as there was H1N1 quarantine at the jail in the def's unit and case would have to be delayed for a week.

The Law Offices of Roger P. Foley, P.A.